A-133-78
Elizabeth Lodge, Carmen Hyde, Eliza Cox, Elaine
Peart, Rubena Whyte, Gloria Lawrence, Lola
Anderson (Appellants)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Ryan and Le Damn JJ. and
MacKay D.J.—Toronto, September 29, 1978;
Ottawa, January 17, 1979.
Prerogative writs — Injunction — Immigration — Deporta
tion - Injunction sought to restrain execution of deportation
order pending disposition of complaint under Canadian
Human Rights Act that proceedings discriminatory — Wheth
er or not Trial Judge erred in dismissing application on
conclusion that what appellants complained of was not dis
criminatory — Canadian Human Rights Act. S.C. 1976-77, c.
33, ss. 3, 5, 33 — Immigration Act, R.S.C. 1970, c. I-2, s.
18(1)(e)(viii) — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 50, 51.
This is an appeal from a judgment of the Trial Division
dismissing an application for an injunction to restrain the
respondent Minister from executing deportation orders with
respect to the appellants pending the disposition under the
Canadian Human Rights Act of a complaint by the appellants
that the deportation proceedings in their case amounted to a
discriminatory practice as defined by section 5 of that Act.
Appellants contend that the Trial Judge erred in basing his
refusal of an injunction on a conclusion that what the appel
lants complained of was not a discriminatory practice within
the meaning of the Canadian Human Rights Act. The Trial
Division had dismissed the application on the ground that, even
if the allegations of the complaint be taken to be true, they
would not amount to a discriminatory practice as defined by
section 5 of that Act. In effect, the Trial Division held that the
Commission was without jurisdiction to entertain appellants'
complaint.
Held, the appeal is dismissed. The application is for an
injunction that is in the nature of a permanent injunction,
albeit one that would presumably be limited in time. It would
be wrong to assimilate the injunction that is sought in this case
to an interlocutory injunction, merely because of its particular
object, and to apply the principles which govern the exercise of
the discretion as to whether or not to grant an interlocutory
injunction. The principles which must be applied are those
which determine whether a permanent injunction should be
granted to restrain a Minister of the Crown from performing a
statutory duty. An injunction will lie against a public authority
to restrain the commission of an act that is ultra vires or
otherwise illegal. So long as the validity of the deportation
orders in the appellants' case has not been successfully chal
lenged, it cannot be said that the Minister would be exceeding
his statutory authority or otherwise acting contrary to law in
executing them. The Court cannot make a finding that there
has been a discriminatory practice within the meaning of the
Canadian Human Rights Act for jurisdiction to make such a
finding has been confined to the specialized agency and tri
bunals provided for by the Act.
APPEAL.
COUNSEL:
C. Roach and J. Lockyer for appellants Eliz-
abeth Lodge and Carmen Hyde.
T. Herman for appellants Eliza Cox and
Elaine Peart.
M. Omatsu for appellant Rubena Whyte.
M. Smith for appellant Gloria Lawrence.
J. L. Pinkofsky for appellant Lola Anderson.
G. W. Ainslie, Q.C. and G. R. Garton for
respondent.
G. F. Henderson, Q.C., E. Binavince and R.
Juriansz for intervenant, Canadian Human
Rights Commission.
SOLICITORS:
Law Office of Charles C. Roach, Toronto, for
appellants.
Deputy Attorney General of Canada for
respondent.
Gowling & Henderson, Ottawa, for interve-
nant, Canadian Human Rights Commission.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from a judgment
of the Trial Division [[1978] 2 F.C. 458] dismiss
ing an application for an injunction to restrain the
respondent Minister from executing deportation
orders with respect to the appellants pending the
disposition under the Canadian Human Rights
Act, S.C. 1976-77, c. 33, of a complaint by the
appellants that the deportation proceedings in
their case amounted to a discriminatory practice
as defined by section 5 of the Act.
The appellants were admitted to Canada as
landed immigrants in the early 1970's. Some, if
not all, of them were admitted pursuant to an
administrative arrangement between the Jamaican
Ministry of Labour and the Canadian Department
of Manpower and Immigration for the recruitment
of Jamaican women for domestic service in
Canada. A Manpower Circular respecting the
arrangement stipulated, among other things, that
the women must be single, widowed, or divorced,
"without minor children or the encumbrance of
common law relationships and the issue thereof',
and between 18 and 40 years of age.
Some three or four years after the admission of
the appellants deportation proceedings were
instituted against them under the Immigration
Act, R.S.C. 1970, c. I-2, on the ground that they
had failed to disclose that they had dependent
children under the age of 18. Following inquiry
they were found to be persons described in section
18(1)(e)(viii) of the Act—namely, persons who
had come into Canada and remained therein by
reason of false and misleading information given
by them—and they were accordingly ordered to be
deported. The deportation orders were not success
fully challenged on appeal to the Immigration
Appeal Board or by proceedings in this Court.
On March 1, 1978, a complaint was filed on
behalf of the appellants with the Canadian Human
Rights Commission. It concludes as follows:
The Complainants believe that the real reason for their
deportation is racial discrimination in that they are Black and
their country of origin is Jamaica. The Complainants have
reason to believe that there has existed in the Ministry of
Employment and Immigration since the year 1975 discrimina
tory internal directives or secret laws especially and particular
ly aimed at Jamaican women as a class. And that they have
been affected by the administration of the said internal direc
tives or secret laws.
The Canadian Human Rights Act sets up a
special scheme for the investigation, settlement
and adjudication of complaints of discriminatory
practices within certain defined areas of federal
legislative jurisdiction. The Canadian Human
Rights Commission is responsible for its adminis
tration. The Commission determines, according to
prescribed criteria, whether it has a duty to deal
with a complaint (section 33). It designates an
investigator to investigate a complaint (section
35). Upon receipt of an investigator's report it may
refer the complaint to another authority, adopt the
investigator's report, or dismiss the complaint (sec-
tion 36). It may appoint a conciliator to attempt to
effect a settlement of the complaint (section 37).
The settlement of a complaint must be approved
by the Commission (section 38). At any stage after
the filing of a complaint the Commission may
appoint a Human Rights Tribunal to inquire into
the complaint (section 39). The Tribunal conducts
a hearing at which the parties are given "a full and
ample opportunity, in person or through counsel,
of appearing before the Tribunal, presenting evi
dence and making representations to it" (section
40). If the Tribunal finds that a complaint is
substantiated it may grant various forms of relief,
including compensation and an order to the person
found to have engaged in a discriminatory practice
to "make available to the victim of the discrimina
tory practice on the first reasonable occasion such
rights, opportunities or privileges as, in the opinion
of the Tribunal, are being or were denied the
victim as a result of the practice" (section 41). An
appeal lies from the decision of a Tribunal com
posed of less than three members to a Review
Tribunal on any question of law or fact or mixed
law and fact (section 42.1).
Discriminatory practices are defined in sections
5 to 13. They comprise discriminatory practices in
"the provision of goods, services, facilities or
accommodation customarily available to the gen
eral public" (section 5), "in the provision of com
mercial premises or residential accommodation"
(section 6), with respect to employment and
employee organizations (sections 7, 8, 9, 10, 11),
and by means of certain forms of publication or
display and communication (sections 12 and 13).
Section 5, which is apparently the provision on
which the appellants' complaint is based, is as
follows:
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to
the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
Section 3 indicates the prohibited grounds of
discrimination for purposes of the Act as follows:
3. For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, conviction for
which a pardon has been granted and, in matters related to
employment, physical handicap, are prohibited grounds of
discrimination.
By subsection 32(5) of the Act the jurisdiction
of the Commission to deal with a complaint
depends, according to the place where the dis
criminatory practice occurs, on the status of the
victim at the time it occurred. Subsection 32(6)
requires that a question of status be referred to a
Minister. It reads:
32....
(6) Where a question arises under subsection (5) as to the
status of an individual in relation to a complaint, the Commis
sion shall refer the question of status to the appropriate Minis
ter in the Government of Canada and shall not proceed with
the complaint unless the question of status is resolved thereby
in favour of the complainant.
An exchange of letters between the Chief Com
missioner and the Minister of Employment and
Immigration, which was added, on application of
the Commission, to the case on the appeal, shows
that the question of the appellants' status at the
time of the alleged discriminatory practice was
referred to the Minister, and that the Minister
expressed the opinion that the appellants had the
required status. It should be noted, however, that
the Minister contended that the Commission did
not have jurisdiction to entertain the complaint on
the ground that deportation proceedings under the
Immigration Act were not "the provision of goods,
services, facilities or accommodation customarily
available to the general public" within the mean
ing of section 5 of the Act.
By section 33 the Commission is under a duty to
deal with a complaint except in certain cases,
including the case where it appears to the Com
mission that the complaint is beyond its jurisdic
tion. Section 33 is as follows:
33. Subject to section 32, the Commission shall deal with
any complaint filed with it unless in respect of that complaint it
appears to the Commission that
(a) the alleged victim of the discriminatory practice to which
the complaint relates ought to exhaust grievance or review
procedures otherwise reasonably available; or
(b) the complaint
(i) is one that could more appropriately be dealt with,
initially or completely, according to a procedure provided
for under an Act of Parliament other than this Act,
(ii) is beyond the jurisdiction of the Commission,
(iii) is trivial, frivolous, vexatious or made in bad faith, or
(iv) is based on acts or omissions the last of which
occurred more than one year, or such longer period of time
as the Commission considers appropriate in the circum
stances, before receipt of the complaint.
On the same day that they filed their complaint
with the Commission the appellants applied to the
Trial Division for an injunction to prevent execu
tion of the deportation orders until their complaint
had been dealt with under the Canadian Human
Rights Act. The appellants contend that if they are
deported before their complaint is dealt with they
will be effectively deprived of their rights under
the Act. The affidavit in support of the application
for injunction, sworn by Charles Roach, a solicitor
for certain of the appellants, contains the following
statement:
8. I verily believe that the Applicants would be deprived of the
full enjoyment of any remedy available to them under Section
42(2)(b) among others of the Federal Human Rights Act if
they were expelled from Canada before a disposition of the said
complaint by the Federal Human Rights Commission; and
further, the investigation of their complaint would be hampered
or frustrated by such expulsion.
An idea of the grounds for the belief that the
appellants have been the victim of a discriminatory
practice may be gathered from the following para
graphs of the affidavit:
11. Between the years 1955 and 1975 the Respondent and his
agents did not institute deportation proceedings in respect of
members of the said class for failure to disclose the existence of
children. In the year 1975 and following, a number of individu
als in the said class, including the applicants, have been ordered
deported for the said reason and I am advised by an immigra
tion official and verily believe that in the last year 52 such cases
have been heard by the Immigration Appeal Board and that
within the last six months reports have been made pursuant to
Section 18 of the Immigration Act in 98 cases.
12. I verily believe that the recent deportations of the said class
of persons is pursuant to an internal directive that has existed
in the Respondent's Department since 1974, as my experience
and that of six lawyers who are associated with me in the
practice of law, all of whom handle immigration cases, and the
experience of a number of other lawyers experienced in immi
gration law and practice, bear out the fact that West Indian
permanent residents of the said class are subject to Section 18
reports in circumstances where such reports were not made.
13. Attached hereto and marked "Exhibit C" is a secret law or
internal directive called the "Rastafarian program" and also
attached hereto and marked "Exhibit D" is another secret law
or internal directive entitled the "East Indian Control Pro
gram", both of which are or have been administered by the
Respondent's Department. The said Exhibits "C" and "D"
were anonymously delivered to me and have been acknowl
edged by spokesmen of the Respondent's Ministry as genuine. I
verily believe there does exist such a directive with respect to
the said class of immigrants to which the Applicants belong,
and the secret laws or internal directives referred to in the
complaint "Exhibit A" are of the nature of directives such as
Exhibits "C" and "D".
The Crown filed an affidavit of Michael Raffer-
ty, an official of the Canadian Employment and
Immigration Commission, which contains the fol
lowing statements with respect to deportation pro
ceedings pursuant to section 18(1) (e) (viii) in
respect of persons in the "class" of the appellants:
3. During the course of the telephone conversation referred to
in paragraph 2 herein, I erroneously informed the said persons
that the records of the Canadian Employment and Immigration
Commission disclosed that, for the six month period ending on
February 22, 1978, reports under Section 18 of the Immigra
tion Act had been made in 98 instances in respect of persons
falling within the "class" referred to in paragraph 9 of the
Affidavit of Charles Roach. In fact, a total of 98 reports had
been made during that period with respect to all persons who
fell within Section 18(1)(e)(viii) of the Immigration Act, and
not just persons of the "class" referred to.
4. I have since personally checked the records of the Canadian
Employment and Immigration Commission maintained at my
office and I have verified that for the one year period ending on
February 22, 1978, a total of 80 reports under Section
18(1)(e)(viii) of the Immigration Act have been made with
respect to persons within the "class" referred to in the Affidavit
of Charles Roach. I have further verified from the said files
that in only 26 instances out of the said total of 80 was a
Direction for an inquiry issued under Section 25 of the Immi
gration Act. In the remaining 54 cases discretion was exercised
by the Director of the Immigration Branch and no inquiry was
held.
5. I am advised by Mohammed Bhabba, Appeals Officer,
Canadian Commission of Employment and Immigration, and
verily believe that of the 52 cases of persons within the said
"class" whose cases have been heard by the Immigration
Appeal Board, referred to in paragraph 11 of the Affidavit of
Charles Roach, in 21 cases the said Board quashed the order of
deportation, in 3 cases the Board directed a stay of execution of
the deportation order, and in the remaining 28 cases the
appeals were dismissed.
The Trial Division dismissed the application for
an injunction on the ground that, even if the
allegations of the complaint be taken to be true,
they would not amount to a discriminatory prac
tice as defined by section 5 of the Act. In effect,
the Trial Division held that the Commission was
without jurisdiction to entertain the complaint of
the appellants. The conclusions of the learned
Trial Judge are contained in the following pas
sages from his reasons for judgment [at pages
460-462]:
In the circumstances, I feel bound to say, expressly, that the
material before me does not sustain the proposition that their
deportation has been ordered because of the applicants' race,
colour, national or ethnic origin or sex rather than because they
lied to obtain landing.
That said, for purposes of this application, I will assume
everything alleged in the complaint to be true. On that assump
tion, a number of the prohibited grounds of discrimination, as
defined by section 3 of the Act are established.
Section 5 is the only section describing a discriminatory
practice upon which the applicants rely and, again assuming
everything alleged in the complaint to be true, it simply does
not disclose a discriminatory practice as defined by section 5. I1
I had any real doubt about that I should be entirely disposed tc
seek the jurisdiction upon which I could properly base an order
having the desired effect. However, the enforcement by the
respondent of the provisions of the Immigration Act is simply
not a denial of or a denial of access to "goods, services,
facilities or accommodation customarily available to the gener
al public". It is not a discriminatory practice and the reason for
its enforcement, even if established to be as reprehensible as the
applicants allege, cannot make it what it is not.
The appellants contend that the Trial Judge
erred in basing his refusal of an injunction on a
conclusion that what the appellants complained of
was not a discriminatory practice within the mean
ing of the Canadian Human Rights Act. The
Commission, as intervenant, supports that position
and argues that it has jurisdiction to deal with the
complaint.
The position adopted by the appellants is based
essentially on the view that the injunction sought is
in the nature of an interlocutory injunction. From
this it was argued that the test which should have
been applied by the Trial Judge was that laid down
by American Cyanamid Co. v. Ethicon Ltd.
[1975] A.C. 396 for the issue of an interlocutory
injunction—whether there is a serious question to
be tried. In my opinion that is a mistaken view of
the nature of the proceeding in this case. Although
the purpose of the injunction sought is in a sense
similar to that served by an interlocutory injunc-
tion—to preserve the status quo pending a decision
on the merits of a claim—the application in the
present case is not in fact an application for an
interlocutory injunction. It is an application by
originating notice of motion invoking the jurisdic
tion of the Trial Division under section 18 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10. It is not made in an action pending in the
Federal Court. It involves a final and not an
interlocutory judgment upon the claim for an
injunction. The application is for an injunction
that is in the nature of a permanent injunction,
albeit one that would presumably be limited in
time. It would be wrong in my opinion to assimi
late the injunction that is sought in this case to an
interlocutory injunction, merely because of its par
ticular object, and to apply the principles which
govern the exercise of the discretion as to whether
or not to grant an interlocutory injunction.
The principles which must be applied are those
which determine whether a permanent injunction
should be granted to restrain a Minister of the
Crown from performing a statutory duty. Section
30(1) of the former Immigration Act provides that
a deportation order shall be executed "as soon as
practicable". Section 50 of the Immigration Act,
1976, S.C. 1976-77, c. 52, provides similarly that a
removal order, which includes by definition a
deportation order made under the former Act,
shall be executed "as soon as reasonably practi
cable". These provisions create a statutory duty
which rests in the final analysis upon the Minister
responsible for the administration of the Act.
An injunction will lie against a public authority
to restrain the commission of an act that is ultra
vires or otherwise illegal. See, for example, Rat-
tenbury v. Land Settlement Board [1929] S.C.R.
52 per Newcombe J. at p. 63: "... the court will
interfere to restrain ultra vires or illegal acts by a
statutory body"; also Le Conseil des ports natio-
naux v. Langelier [1969] S.C.R. 60 at p. 75, where
Martland J. speaks of the power to restrain the
commission of an act "without legal justification".
From the analysis in these and other authorities I
think we may assume for purposes of the present
case that an injunction will lie in a proper case
against a Minister of the Crown who purports to
act under a statutory authority. This was expressly
held with respect to the execution of deportation
orders by the Minister of Manpower and Immigra
tion in Carlic v. The Queen and Minister of Man-
power and Immigration (1968) 65 D.L.R. (2d)
633, where Freedman J.A. (as he then was), deliv
ering the judgment of the Manitoba Court of
Appeal, said at page 637: "It may be well to point
out that Courts have more than once affirmed
their right to restrain a Minister of the Crown
from the doing of acts which were either illegal or
beyond statutory power".
So long as the validity of the deportation orders
in the appellants' case has not been successfully
challenged it cannot be said that the Minister
would be exceeding his statutory authority or
otherwise acting contrary to law in executing
them. The Court cannot make a finding that there
has been a discriminatory practice within the
meaning of the Canadian Human Rights Act. The
jurisdiction to make such a finding has been con
fided to the specialized agency and tribunals pro
vided for by the Act. Such a finding involves a
question of fact to be determined on the basis of an
investigation by the Commission and a hearing by
a Human Rights Tribunal. Whether such a finding
would technically affect the validity of the depor
tation orders, or whether it would merely give rise
to the relief provided by section 41, is another
question. The point is that the Court must treat
the deportation orders as presently valid and the
Minister as under a statutory duty to execute
them.
Counsel for the Commission conceded that the
application was not one for an interlocutory
injunction but argued that it should be treated as
an application to prevent the appellants from being
effectively deprived of their right to have their
complaint dealt with under the Canadian Human
Rights Act. Counsel were unable to cite to us any
authority, and I have not been able to find any, to
support the use of injunction to restrain the
performance of a statutory duty on the ground
that such performance may have an adverse effect
on some right which the applicant seeks to assert
in another forum. I do not think that such a use of
injunction can be recognized as a matter of princi-
ple. It would be tantamount to a general power to
suspend the execution of administrative decisions
in cases judged to be equitable. The Court does not
have that power, even with respect to decisions
that are the subject of review before it. Section 51
of the Immigration Act, 1976, specifies the cases
in which the execution of a removal order is
stayed. By implication it excludes any other stay of
execution, including one in the exercise of judicial
discretion. In considering whether injunction
should be recognized for such a purpose it is
sufficient to contemplate its effects upon the
administrative process. It would be enough to file a
complaint under the Canadian Human Rights Act
in order to be able to obtain an indefinite suspen
sion of the execution of a deportation order. Such
an effect would in my opinion have to be expressly
provided for by legislation. It is to be noted that
the Canadian Human Rights Act makes no provi
sion for a stay of administrative proceedings which
a complaint alleges to be tainted, as it were, by a
discriminatory practice. I do not think we can
supply this lack by a use of injunction in a case in
which there is not and cannot be the proof normal
ly required that what the applicant seeks to pre
vent would be ultra vires or otherwise contrary to
law.
Having said this, I may observe that I cannot
see why the execution of the deportation orders
should make it impossible to investigate the appel
lants' complaint or to afford them such relief as
section 41 of the Act may provide. From the
affidavit in support of their application for injunc
tion their complaint would not appear to be
dependent on their personal knowledge.
Having concluded for these reasons that an
injunction will not lie for a purpose such as that
invoked in the present case, I do not find it neces
sary to express an opinion as to whether the
application of the inquiry and deportation provi
sions of the Immigration Act is a service cus
tomarily available to the general public within the
meaning of section 5 of the Canadian Human
Rights Act. The question as to the extent, if any,
to which the administration and application of
federal statutes, whether regulatory in purpose or
not, fall under the Canadian Human Rights Act is,
of course, a serious one. There may be important
distinctions to be drawn between different aspects
of the public service, based on the facts established
in each case. It is preferable, I think, that these
questions should be determined in the first
instance by the Commission, as section 33 would
appear to intend, before a court is called upon to
pronounce upon them. In the present case the
Commission has indicated a disposition to enter
tain the complaint. It has argued in this Court that
it has jurisdiction. It has contended that in making
specific reference to the terms of paragraph (a) of
section 5 of the Act the Trial Judge has not
considered the application of paragraph (b), which
provides that it is a discriminatory practice in the
provision of a service customarily available to the
general public "to differentiate adversely in rela
tion to any individual" on a prohibited ground of
discrimination. That contention may be true. For
the reasons already given it is sufficient to say that
it was not an error to refuse an injunction in the
present case. The appeal should therefore be dis
missed with costs.
* * *
RYAN J.: I concur.
* * *
MAcKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.